Ccnni- 


Duke  University  Libraries 

Report  of  the  C 
Conf  Pam  12mo  #76 


HOUSE  OF  REPRESENTATIVES,  May  21,    lt364. —  Laid   on 
the  table  and  ordered  to  be  printed. 

[By  Mr.  Russell,  from  the  Judiciary  Committee.] 


EEPOET 

OF    THE 

COMMITTEE  ON  THE  JUDICIAL*?? 

Upon  the  suspension  of  the  Habeas  Corpus. 


The  Committee  on  the  Judiciary  have  had  under  consideration,  ac- 
cording to  the  order  of  the  House,  the  message  of  the  President  in 
response  to  a  resolution  of  the  House  on  the  subject  of  continuing  in 
force  the  a£t  approved  February  15,  1864,  "to  suspend  the  privilege 
of  the  writ  of  habeas  corpus  in  certain  cases,"  and  respectfully  submit 
the  following  report : 

The  writ  of  habeas  corpus  is  a  process  by  which  persons  imprisoned, 
or  restrained  of  their  liberty,  are  entitled  to  be  brought  before  a  court 
or  jfege,  in  order  that  the  causes  of  their  imprisonment  or  detention 
may  be  investigated,  and  that,  if  illegally  detained,  they  may  be  re- 
leased or  admitted  to  bail.  It  is  a  formal  process,  employed  in  many 
cases  of  little  interest  to  the  public ;  but,  from  its  effects,  in  a  class  of 
cases  not  uncommon  under  despotic  governments,  though  rare  among 
us,  it  is  regarded  in  our  political  system  as  the  emblem  of  judicial 
protection  to  personal  liberty  against  executive  tyranny.  To  curb 
executive  tyranny,  it  is  generally  maintained  in  full  force.  To  en- 
large executive  power,  for  the  public  safety,  it  is  allowed  to  be  sus-. 
pended  in  particular  emergencies. 

This  writ  acquired  historical  celebrity  mainly  from  its  connection 
with  a  memorable  struggle  in  England,  which  finally  resulted  in  the 
permanent  establishment  of  a  free  constitution.  In  that  connection, 
an  act  of  Parliament,  which  conferred  stability  and  efficacy  upon  the 
writ,  came  to  be  venerated  as  one  of  the  landmarks  of  constitutional 
liberty.     Standing  alone,  it  might,  like  similar  acts  in  earlier  ages, 


2 

hove  been  found  a  feeble  security,  if  the  Parliament  and  people  had 
nf)t  established  their  authority  in  the  government,  and  proved  that 
their  spirit  and  strength  were  equal  to  any  conflict  with  the  crown. 
That  famous  statute  did  not  assure  the  benefit  of  the  writ  to  persons 
illegally  forced  into  the  military  service,  or  to  any  prisoners  except 
those  confined  under  accusations  of  certain  criminal  offences.  But 
we  shall  best  estimate  the  real  value  of  this  ancient  writ,  and  the  dan- 
ger of  suspending  it  among  us,  by  considering  it  in  connection  with 
our  own  institutions  and  circumstances,  rather  than  with  those  of 
another  country  and  a  former  age.  The  place  it  holds  in  our  consti- 
tutions denotes  its  high  rank  among  the  safeguards  of  our  liberty. 
But  our  system  of  confederate  sovereignties  and  representative  gov- 
ernments, is  replete  with  still  more  effectual  guaranties,  while  the 
jjirit  and  intelligence  of  the  people  secure  them  against  unreasona- 
T^€ars  of  being  enslaved  by  their  public  servants. 

.n  considering  this  subject,  we  must  avoid  the  common  fallacy  of 
applying  to  the  present  posture  of  our  affairs  general  principles  which 
arc  applicable  only  to  a  state  of  peace.  Institutions  and  laws  which 
guAd '•  personal  liberty  against  Executive  encroachment  have  the 
eflfiect  of  restraining  the  activity  of  the  Government.  While  leaving 
it  sufficient  energy  for  all  useful  purposes,  when  it  flourishes  with 
vigor  in  seasons  of  tranquility,  they  may,  if  there  is  no  exceptional 
provision,  deprive  it  of  the  necessary  power  to  defend  the  public 
safety  in  .tempestuous  times  of  invasion  or  rebellion.  When  the  State 
is  threatened  with  destruction  by  external  or  internal  violence,  the 
Government,  and  especially  the  executive,  must  often  act  with  un- 
trammelled energy  against  enemies,  foreign  and  domestic.  Among 
the  blessings  of  peace  is  the  enjoyment  of  unrestricted  personal  free- 
dom, by  all  but  criminals  amenable  to  mild  laws.  Among  the  mis- 
fortunes of  war,  are  the  unavoidable  restraints  imposed  on  citizens 
who  fight  fo."  their  country,  and  on  many  others  for  the  public  safety. 
In  peace,  tl  >  deliberate  procedure  and  gentle  authority  of  courts,  so 
favorable  to  private  rights,  are  sufficient  to  protect  society  against 
crime.  Whtu  all  rights  and  liberties  are  endangered  by  invasion  or 
rebellion,  they  can  sometimes  be  defended  only  by  the  prompt  and 
swift  exertion  pf  Executive  power.  A  penal  code,  based  mainly  on 
the  principle  of  punishing  offences  after  they  are  complete,  instead  of 
preventing  the-m  when  they  are  designed,  protects  individuals  against 
injustice,  and  is  not  too  dangerous  to  the  public  in  tranquil  times. 
But  during  invasion  or  rebellow,  the  actual  completion  of  some 
offences  might  cause  the  ruin  of  the  Government  or  the  subjugation 
of  the  country.  To  exempt  from  confinement  all  but  those  who  can 
be  proved  guilty  by  sufficient  testimony,  according  to  technical  rules 
of  evidence,  which  are  often  favorable  to  the  accused,  is  safe,  as  it  is 
just,  when  there  exists  no  peculiar  public  "peril.  But  when  a  vast 
invasion  interrupts  courts,  scatters  witnesses,  and  destroys  testimony  ; 
when  the  most  dangerous  crimes  are  contrived  and  executed  with  ex- 
traordinary secresy ;  when  the  only  evidence  may  be  in  the  ranks,  or 
within  the  lines  of  the  enemy,  or,  for  other  reasons,  may  be  unattain- 
able or   inadmissible,  the   temporary   restraint  of  persons    known, 


though  not  proved,  to  be  guilty,  or  known  to  be  dangerous,  though 
not  yet  guilty,  may  be  essential  to  the  public  safety 

Accordingly,  our  Confederate  Constitution,  providing  for  the  para- 
mount interests  of  both  peace  and  war,  declares  that  "the  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended  unless  when,  in  case 
of  rebellion  or  invasion,  the  public  safety  may  require  it."  Thus  by 
securing  that  ancient  writ,  to  be  enacted  and  maintained  by  Congress, 
personal  liberty  is  placed  under  judicial  protection.  But  power  is  given, 
not  by  implication,  but  by  express  grant  or  recognition,  to  suspend  that 
protection  on  certain  rare  occasions,  when,  by  being  abused,  it  may 
endanger  the  public  safety.  Such  are  the  wise  precautions  of  states- 
men, T*ho,  instructed  by  the  experience  of  nations,  have  known  how 
to  adapt  constitutions  to  the  vicissitudes  of  national  fortune..  If  wo* 
neglecting  the  lesson,  apply  the  principles  of  peace  to  the  exigencies 
of  invasion,  we  miss  the  true  aim  of the  Constitution  and  of  timely 
statesmanship.  The  true  aim  is  to  preserve  liberty,  not  the  writ  or 
habeas  corpus.  When  the  cause  of  present  danger  to  our  liberties  is 
an  overwhelming  invasion,  the  writ  of  habeas  corpus  will  not  save 
them,  but  it  may  increase  the  danger.  • 

The  obvious  purpose  of  the  Constitution  in  the  clause  just  cited  is 
to  tie  the  hands  of  the  Executive  and  make   the  judiciary  paramount 
in  questions  affecting  the  restraint  of  persons  until  rebellion  or  inva- 
sion occurs,  and   then   to  allow   the   legislature,  if  the   public  safety 
requires  it,  to  release  executive  power  from  judicial  control,  so  far  as 
the  writ  of  habeas  corpifs  is'  an   instrument  of  control.     The   effect  of 
the  suspension  is  thus,  or  even  more   strongly,  stated  by   writers   on 
law.     Accordingly,  in  the  country  fiom   which  we   he    derived  the 
principles  of  this  clause,  the  writ  has  been  maim  jinei   as  a  check  on 
the  Executive  ;   but   when   it  has   been  suspended,  in  time   of  public 
peril,  the  legislature  has  conferred  on  the  Executive,  or  recognized  as 
a  result  of  such  suspension,  the  power  to  arrest  and  detain   persons 
deemed  dangerous  or  suspicious,  and,  as  a  substitute  for  judicial   su- 
pervision, has  endeavored  to   regulate,  by    law,  the    exercise  of  this 
extraordinary  executive  power.     Somewhat  similar  precedents  are  to 
be  found  in  the  legislation  of  some  of  the    States  of  oar   late  Union 
and  in  a  bill  once  passed  through  the  Semite  of  the  Federal  Congress. 
A  single   example   will   serve   as    an    illustration — an  example  which 
was  probably  fresh  in  the  recollection  of  leading  framers  of  the  Fed- 
eral Constitution.     In  May,  1781,  the  General  Assembly  of  Virginia, 
acting  under  a  constitution  which  required   the   legislative,  executive 
and  judicial   departments   to  be  kept   separate,  with    a  bill  of  rights 
containing  provisions  with  regard  to  general  warrants  and  bail  similar 
to  those  in   the   Confederate   Constitution,  passed  an  act  conferring 
large  powers    on    the    Governor.     It    embraced    this*  clause:   "The 
Governor,  with  advice  of  the  Council,  is  also   hereby   empowered  to 
apprehend,  or  cause  to  be  apprehended   and  committed  to  close  con- 
finement, any  person  or  persons   whatsoever  whom    they  may   have 
just  cause  to  suspect  of  disaffection  to  the  independence  of  the  United 
States  or  of  attachment  to  their  enemies,  and  such  person  or  persons 
shall  not  be  set  at  liberty  by  bail,  mainprize  or  habeas  cor?)us"  ^  With 


a  knowledge  of  such  examples  illustrating  the  practical  force  of  the 
clause  under  consideration,  the  framers  of  our  Constitution  adopted 
itt  Unless  it  is  designed  to  enable  the  Legislature  to  give  the  Execu- 
tive power  to  restrain  persons' whom  the  public  safety  requires  to  be 
restrained,  it  is  difficult  to  conceive  why  a  suspension  of  the  writ 
should  be  thus  allowed,  with  a  view  to  "  the  public  safety,"  during 
invasion  or  rebellion. 

The  power  of  restraint  exercised  in  such  cases  durir»g  a  transient 
emergency  of  public  danger  is  not  usurped  as  a  military  power.  It' 
is  conferred  by  the  Legislature — the  highest  civil  authority — and  re- 
mains subject  to  its  regulation  and  control,  or  may  be  withdrawn  at 
its  pleasure.  Nor  is  this  power  judicial.  The  temporary  confine- 
ment of  persons  under  the  orders  of  the  Executive  is  not  for  trial, 
Conviction  or  punishment.  It  is  not  judicial  in  purpose  or  in  pro- 
cess, though  the  law  may  make  it  introductory  to  judicial  proceedings 
in  proper  cases.  In  detaining  dangerous  persons,  pursuant  to  the 
tJonstitution  and  laws,  for  a  short  time,  until  the  public  danger  is 
past,  the  Executive  exercises  an  executive  function*  pertaining  to  the 
defence  of  the  public  safety  against  public  enemies.  It  can  never  be 
exercised  but  in  such  extreme  emergencies  and  by  virtue  of  law. 

Among  the  "guaranties"  (as  they  are  often  styled)  by  which  our 
Constitution  defends  the  citizen  against  the  tyranny  of  his  Govern- 
ment, it  declares  that  no  person  shall  "  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law,"  and  that  "the  right  of  the 
people  to  be  secure  in  their  persons,  houses,  papers  and  effects 
against  unreasonable  searches  and  seizures  shall  not  be  violated ;  and 
no  warrants  shall  issue  but  upon  probable  cause,  supported  by  oath 
or  affirmation,  and  particularly  describing  the  place  to  be  searched 
and  the  persons  or  things  to  be  seized." 

The  former  and  most  general  of  these  guaranties  was  borrowed 
substantially  from  magna  carta,  and  some  suppose  that  the  writ  of 
habeas  corpus  was  first  introduced  to  give  effect  to  that  instrument.  It 
is  certain  that  the  purpose  of  the  writ  is  to  give  effect  to  all  guaran- 
ties and  laws  which  protect  the  liberty  of  the  person.  It  is  equally 
obvious  that  the  purpose  of  the  Constitution,  in  allowing  the  writ  to 
be  suspended,  is  to  prevent  the  enforcement  of  such  guaranties  and 
laws  by  means  of  the  writ,  when,  in  case  of  invasion  or  rebellion,  the 
public  safety  requires  the  suspension.  The  "  guaranties"  are  gene- 
ral rules.  The  clause  in  the  Constitution  which  relates  to  the  writ  of 
habeas  corpus  is  a  particular  provision  for  an  extraordinary  occasion, 
and  is  a  special  exception  from  general  rules.  Whenever  the  occa- 
sion arises,  the  particular  provision  made  for  it  in  the  Constitution 
comes  into  operation,  and  becomes  the  measure  of  the  power  of  Con- 
gress over  the  subject  of  the  writ  of  habeas  corpus.  The  grant  of  power 
is  broad,  without  limitation  of  persons,  process  or  causes  of  impris- 
onment. The  suspension,  therefore,  may  extend  to  all  courts  and 
cases  over  which  the  Confederate  Government  has  jurisdiction,  or,  at 
the  discretion  of  Congress,  it  may  be  more  limited  If  the  suspension, 
is  general,  as  the  Constitution  permits  it  to  be,  the  writ  cannot  issue  at 


all,  and  therefore  it  cannot  be  used  to  enforce  any  right,  guaranty,  or 
law  whatever,  within  the  Confederate  jurisdiction. 

If,  instead  of  being  an  exception  to  general  clauses,  the  power  of  sub- 
pending  the  writ  is  held  to  be  subordinate  to  the  general  rules  or 
guaranties  of  personal  liberty  which  have  been  cited,  so  that  a  sus- 
pension cannot  have  effect  in  any  case  to  which  they  apply,  the  power 
is  practically  a  nullity.  It  may  be  exercised  in  peace  with  little  dan- 
ger, and  during  invasion  or  rebellion  with  little  benefit,  or  with  none. 
Such  a  construction  leaves  an  important  clause  in  the  Constitution 
without  efficacy  or  rational  purpose.  If,  for  example,  we  assume  that 
no  suspension  can  take  away  the  benefit  of  the  writ  from  a  party  ar- 
rested without  "  due  process  of  law,"  and  that  an  order  of  arrest  made 
by  the  President,  is  not  due  process  of  law,  although  authorized  by  Con- 
gress upon  suspending  the  writ  in  time  of  invasion  or  rebellion  ;  and 
if  we  assume  also  that  the  privilege  of  the  writ  cannot  be  suspended 
as  to  any  party,  unless  he  has  been  duly  arrested  for  a  specific  offence 
under  a  judicial  warrant,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  person  to  be  seized  ;  we  substatially  nullify 
the  plain  intent  of  a  constitutional  provision  made  for  the  public 
safety  on  exceptional  occasions  of  extraordinary  danger.  Such  a 
construction  is  not  to  be  admitted  in  preference  to  another  which  is 
more  consistent  with  the  language  and  the  evident  purposes  of  the 
Constitution.  Every  part  of  the  Constitution  should  have  its  fair 
effect. 

It  is  an  error  to  imagine  that  every  seizure  of  persons  or  property 
for  temporary  purposes,  without  a  judicial  warrant  or  order,  is  al- 
ways unconstitutional,  or,  in  the  language  of  the  Constitution,  is 
"  without  due  process  of  law."  Many  seizures  of  persons  and  prop- 
erty are  authorized,  without  just  objection,  by  Confederate  and  State 
laws,  in  the  absence  of  judicial  process,  even  in  time  of  peace.  But 
the  distinction  between  peace  and  war  in  this  regard,  is  well  marked. 
During  the  present  conflict,  we  have  occupied  lands,  and  passed  many 
laws  for  the  seizure,  removal  or  destruction  of  property  without  judi- 
cial proceedings  of  any  kind.  It  was  long  since  held  by  an  able 
court  that  executive  officers,  acting  under  a  resolution  of  the  Conti- 
nental Congress,  could  lawfully  seize  in  a  State,  and  remove  private 
property,  to  prevent  it  from  falling  into  the  hands  of  the  enemy,  and 
that  the  owner  was  not  entitled  to  redress,  though  it  was  captured' 
after  the  removal.  "  Congress,"  said  the  court,  "  might  lawfully  di- 
rect the  removal  of  any  articles  that  were  necessary  to  the  mainte- 
nance of  the  Continental  army,  or  useful  to  the  enemy,  and  in  dan- 
ger of  falling  into  their  hands  ;  for  they  were  vested  with  the  powers 
of  peace  and-  war,  to  which  this  was  a  natural  and  necessary  incident." 
The  distinction  between  peace  and  war,  as  to  the  powers  of  the 
political  departments  of  Government  over  property,  has  "been  often 
admitted  by  the  judiciary ;  but  property  is  protected  by  just  such 
constitutional  guarantees  as  those  which  guard  the  freedom  of  the 
person.  The  distinction  was  recognized, 'as  to  personal  liberty,  in  the 
arguments  made  against  the  " alien  act"  of  1798,  which  empowered 
the  President  of  the  United  States  to  deport  suspected  aliens,  though 


they  were  from  friendly  nations.  Among  other  objections  to  that  act, 
it  was  urged  in  the  celebrated- report  on  the  Virginia  resolutions  of 
1798-9,  that  under  it  "the  benefit  of  the  writ  of  habeas  corpus  may 
be  suspended  with  lespeet  to  the  party,  although  the  Constitution 
ordains  that  it  shall  not  be  suspended,  unless  when  the  public  safety 
may  require  it,  in  case  of  rebellion  or  invasion,  neither  of  which 
existed  at  the  passage  of  the  act."  If  war,  by  its  exceptional  opera- 
tion on  private  rights,  justifies  laws  authorizing  the  seizure  of  prop- 
erty without  a  particular  warrant  or  any  judicial  proceeding,  much 
more  may  Congress,  under  an  explicit  provision  of  the  Constitution 
made  for  th^  very  occasion,  suspend  the  judicial  enforcement  of  gen- 
eral rules  relating  to  persons  by  means  of  the  writ  of  habeas  corpus, 
when  the  public  safety  requires  it,  in  case  of  rebellion  or  invasion. 

We  are  not  to  conclude  that  a  general  or  unqualified  suspension  of 
the  writ  by  Congress  would  deprive  all  persons  of  the  benefit  of  that- 
process,  or  all  courts  of  the  power  to  issue  it  in  all  cases.  The  juris- 
dictions of  the  States  and  of  the  Confederacy  are  not  to  be  thus  con- 
founded. The  constitutional  prohibition  against  suspension  is  in 
g'eneral  terms,  implying,  (it  might  be  said,)  the  duty  of  Qongress  to 
extend  the  writ  to  all  persons,  however  confined.  Yet  Congress,  in 
authorizing  the  Confederate  courts  and  judges  to  issue  the  writ,  has  for- 
bidden them  to  extend  it  i(  to  prisoners,  unless  when  they  are  in  custody 
under  or  by  virtue  of  the  authority  of  the  Confederate  States."  The 
appellate  power,  which  was  exercised  in  certain  cases  of  habeas  corpus 
by  the  Supreme  Court  of  the  United  States  over  the  State  courts,  is 
now  dormant.  State  judges  have,  in  some  instances,  assumed  a  ques- 
tionable jurisdiction  to  release,  by  this  writ,  parties  confined  under 
Confederate  authority.  How  far,  then,  can  the  legislation  of  Con- 
gress on  this  subject  affect  State  courts  and  judges,  or  prisoners  not 
held  under  Confederate  authority  or  laws  ?  How  far  can  State  courts 
or  judges,  in  any  case,  extend  the  benefit  of  the  writ  to  persons  held 
by  the  Confederate  authorities  or  under  Confederate  law?  These  are 
questions  of  conflicting  jurisdiction  which  cannot  now  be  finally  ad- 
judicated, and  we  refrain  from  agitating  them  by  an  attempt  to  settle 
them.  It  may  be  hoped  that  mutual  forbearance  will  prevent  inju- 
rious collisions  during  this  invasion.  Congress,  at  all  events,  has 
•restricted  its  suspension  of  the  writ  to  the  cases  of  persons  arrested 
or  detained  by  order  of  the  President  and  two  other  Confederate  offi- 
cers acting  under  Confederate  law. 

The  power  of  suspension,  granted  in  the  Constitution,  belongs  to 
Congress,  and,  without  authority  from  that  body,  the  President  can 
never  suspend  the  writ.  JB;.:ing  authorized,  also,  to  make  all  necessary 
and  proper  laws  to  carry  into  effect  this  and  other  powers,  Congress 
may  enact  such  regulations  as  become  necessary  in  consequence  of  a 
suspension.  It  may  regulate  the  arrest,  confinement  and  discharge 
of  prisoners  deprived  of  the  writ.  From  considerations  already  men- 
tioned, and  others  which  might  be  adduced,  it  appears  that  Congress, 
upon  suspending  the  writ,  may  authorize  the  Executive  to  confine 
persons  whom  the  public  safety  requires  to  be  deprived  of  the  writ' 
during  inyasion  or  rebellion.      It  is  a  power  of  temporary  restraint 


which  can  be  conferred  only  during  such  a  period  of  peculiar  public 
danger. 

The  present  act  of  Congress  has  been  carefully  framed  with 
studious  deference  to  the  spirit  of  the  Constitution,  and  with  all  the 
regard  for  personal  liberty  that  is  consistent  with  £ny  substantial  sus- 
pension of  the  writ  of  habeas  corpus.  It  assorts  the  exclusive  power 
of  the  Legislature  over  the  subject.  It  recites  the  occasion  which 
had  made  it  necessary.  It  suspends  the  writ  only  during  this  inva- 
sion, and  no  longer,  in  any  event,  than  ninety  days  after  the  next 
meeting  of  Congress.  It  restricts  the  suspension  to  the  cases  of  per- 
sons arrested  or  detained  by  order  of  the  President,  the  Secretary  of 
War  or  the  general  officer  commanding  the  trans-Mississippi  military 
department,  by  the  authority  and  under  the  control  of  the  President. 
It  declares  that  the  purpose  of  Congress,  in  the  passage  of  the  act,  is 
to  provide  more  effectually  for  the  public  safety  by  suspending  the 
writ  in  cases  which  are  specified,  and  in  no  others.  These  are  cases 
of  treasonable  conspiracies,  of  spies,  of  attempts  to  avoid  military 
service,  and  other  cases  critically  affecting  the  public  safety  at  the 
time.  The  offences  mentioned  are  such,  generally,  as  to  imply  hos- 
tility to  the  Government  and  to  the  public  safety,  and  to  some  of  the 
cases  the  writ  would  never  have  been  applicable  under  the  famous 
"habeas  corpus  act"  of  England.  Moreover,  the  act  of  Congress 
commands  the  President  to  cause  proper  officers,  not  to  convict  or 
punish,  but  to  investigate  the  cases  of  all  persons  so  arrested  or  de- 
tained, in  order  that  they  may  be  discharged  if  improperly  detained, 
unless  they  can  be  speedily  tried  in  due  course  of  law;  thus  indica- 
ting that  whenever  it  is  practicable  and  proper,  they  are  to  be  com- 
mitted to  the  judicial  tribunals.  If  a  trial  takes  place,  it  must  be 
according  to  the  forms  prescribed  in  the  Constitution.  The  act  per- 
mits the  writ  always  to  be  issued,  and,  to  stay  proceedings  under  it, 
requires  the  officer  having  a  person  in  custody  to  certify,  under  oath, 
that  such  person  is  detained  by  him  as  a  prisoner  for  any  of  the 
causes  and  under  the  authority  aforesaid.  The  law  has  been  admin- 
istered in  the  spirit  of  these  restrictions  on  the  Executive  power,  and 
the  President  has  executed  a  high  and  delicate  trust  with  prudence 
and  moderation. 

The  act  does  not,  in  direct  terms,  empower  him  or  any  other  officer 
to  order  arrests.  It  only  suspends  the  writ  of  habeas  corpus  when 
parties  are  arrested  or  detained  under  such  orders.  This  may  fairly 
be  construed,  however,  as  legalizing  the  orders.  In  some  of  the 
cases  to  which  the  act  refers,  the  President  previously  had  power  to 
arrest;  as  in  those  of  spies,  deserters,  and  persons  owing  military 
service.  In  others,  the  legality  of  the  confinement  may  depend  upon 
the  act  under  consideration — either  upon  it*  meaning  or  its  constitu- 
tional validity.  If  there  is  doubt,  in  any  instance,  it  may  increase 
the  customary  caution  of  the  President  in  the  exercise  of  discretion- 
ary power.  The  question  of  the  constitutionality  of  the  act  has  not 
been  withdrawn  from  the  courts,  nor  can  it  be  withdrawn  by  any 
action  of  the  Executive  or  of  Congress.     It  has  been  already  consid- 


ered  and  decided.     The  validity  of  the  law   has   been   maintained  bj 
judicial  decision  and  it  is  believed  not  to  be  doubtful. 

The  necessity  for  the  passage  of  such  an  act  was  clear  and  strong. 
A  most  formidable  Invasion  had  been  in  progress  nearly  three  years 
with  the  atrocious  object  of  subjugating  the  Confederate  States  It 
had  overrun  some  entire  States  and  large  portions  of  others.  It 
had  penetrated  bur  boundaries  by  land  and  sea  on  every  side.  Insur- 
rectionary governments  were  set  up  in  some  of  the  States.  Thou- 
sands of  slaves,  under  the  leading  of  white  men,  were  in  arms 
against  their  masters  and  against  the  Confederacy.  Spies,  and  other 
hostile  emissaries,  easily  eluding  ordinary  detection,  abounded  in  our 
vast  territory,  within  our  military  lines,  in  our  cities  especially,  and 
in  the  capital  itself.  In  the  interest  of  the  invaders  and  conspiring 
with  domestic  traitors  to  promote  the  success  of  the  invasion,  they 
plotted  to  release  our  prisoners  of  war,  to  incite  servile 
insurrection,  to  foment  disaffection,  to  destroy  public  works, 
and  even  to  overthrow  the  Government.  Their  number,  *  ac- 
tivity, boldness,  and  success  had  been  recently  increased  by  discour- 
aging circumstances  in  our  condition.  Large  portions  of  the  Con- 
federacy had  been  devastated  and  the  whole  had  been  much  exhausted 
by  a  long  war.  In  the  last  campaign  our  career  of  victory  had  been 
chequered  with  some  reverses.  These  were  followed  by  a  period  of 
depressing  inaction.  Winter  with  its  wants,  a  scarcity  of  the  neces- 
saries of  life,  a  deranged  currency,  and  depressed  public  credit 
weighed  heavily  on  the  hearts  of  the  people.  The  great  body  of  them, 
in  and  out  of  the  army,  and  in  every  State,  remained  firm,  hopeful, 
and  faithful,  displaying  unparalleled  fortitude.  But  the  timid  began 
to  despond,  the  wavering  to  incline  against  us,  and  the  unscrupulous 
to  prepare  to.  sell  their  country's  independence.  Designing  men, 
while  they  disguised  a  treasonable  aim,  thought  a  season  of  distress 
was  opportune  for  denouncing  the  war,  although  we  had  no  alterna- 
tive but  submission  to  a  foreign  yoke.  They  exaggerated  our  mis- 
fortunes and  the  power  of  the  enemy ;  they  endeavored  to  undermine 
confidence  in  our  Government  and  our  cause,  and,  by  every  art,  they 
paved  the  way  for  treason.  In  a  few  instances,  on  both  sides  of  the 
Mississippi,  their  ulterior  design  was  disclosed  in  public  meetings 
without  diguise.  In  a  western  State  a  convention  was  called  for  trea- 
sonable purposes.  Under  the  sinister  influences  of  the  time  our  army 
was  thinned  by  desertions  and  the  deserters  were  protected  at  home. 
The  laws  for  filling  up  its  ranks  wore  factiously  obstructed  in  various 
ways  and  the  writ  of  habeas  corpus  began  to  be  plied  for  that  pur- 
pose through  the  instrumentality  of  one  or  two  State  judges,  who 
assumed  and  abused  a  jurisdiction  over  Confederate  affairs.  One 
such  judge  might  have  dissolved  large  sections  of  our  army,  or  might 
have  delayed  the  measures  intended  to  strengthen  it  until  thousands 
of  our  gallant  defenders  had  been  slain  for  want  of  support.  In  some 
parts  of  the  Confederacy  the  courts  had  been  broken  up  by  invasion, 
and  in  others  they  were  pratically  paralyzed  by  war.  Some  secret 
leagues  were  believed  to  exist  which  might  baffle  the  scrutiny  or  defy 
the  powes  of  the  ordinary  tribunals.     In  some  instances  well-known 


9 

offenders  derived  impunity  from  the  nature  of  their  offences,  which 
could  bfe  proved  only  by  the  enemy,  with  whom  they  had  treasonable 
dealings,  or  by  negroes  whom  they  persuaded  to  insurrection.  In 
others,  offences  of  most  fatal  tendency  were  planned,  hut  not  yet 
committed,  because  they  awaited  a  favorable  opportunity,  and,  there- 
fore, some,  of  the  most  dangerous  characters  were  not  amenable  to 
the  ordinary  penal  code.  In  others,  proof  was  known  to  exist,  but  it 
was  within  the  enemy's  lines,  or  in  distant  and  inaccessible  parts  of 
our  country,  or  from  other  impediments  caused  by  the  war,  it  could 
not  be  speedily  produced.  From  such  causes  persons  had  been 
releas2d  by  habeas  corpus  who  were  soon  afterwards  found  piloting  the 
enemy  through  our  country  or  otherwise  openly  serving  them  under 
the  protection  of  their-  bayonets.  The  total  number  of  disloyal 
persons  in  any  State  was  small,  but  their  opportunities  for  mischief 
in  the  bosom  of  our  community,  and  the  invading  force  with  which 
they  co-operated,  made  them  dangerous.  Our  ;iew  Government 
had  not  yet  acquired  the  venerable  authority  of  antiquity,  and 
its  right  to  exist  was  contested  by  a  powerful  enemy.  That  enemy 
had  made  enormous  preparations  for  the  approaching  campaign, 
and  the  campaign  was .  on  the  eve  of  opening.  To  Strengthen  the 
army  instantly,  and  to  suppress  internal  danger  by  prompt  and 
vigorous  measures,  were  steps  essential  to  the  salvation  of  the 
Confederacy.  The  Government  confronted  all  its  enemie^domestic 
and  foreign,  and  among  its  energetic  provisions  for  the  public 
safety  was  the  act  suspending  the  writ  of*  habeas  corpus.  Those  who 
persist  in  alleging  that  Congress  had  other  and  sinister  objects  in 
passing  the  act,  unfairly  refuse  to  judge  the  lawgivers  by  the  pur- 
poses inscribed  on  the  face  of  the  law  and  demonstrated  by  its  actual 
administration. 

The  effects  of  this  act  were  immediate  and  salutary.  In  connec- 
tion with  others  still  more  important,  it  enabled  the  Government  and 
the  army  to  save  the  Confederacy  from  the.  imminent  dangers  which 
threatened  it.  Desertions  were  stopped.  The  ranks  of  the  army  at 
once  received  many  recruits.  Content  and  confidence  were  restored 
to.  the  faithful  troops  in  the  field.  Although-  few  arrests  were  made, 
the  terror  of  the  law  silenced  the  voice  of  treason,  dissolved  conspir- 
acies and  banished  the  most  dangerous  characters.  Security  was.  es- 
tablished at  home.  This  Government,  the  States  and  the  people  were 
left  free  to  devote  their  energies,  without  distraction,  to  the  great 
task  of  repelling  the  invasion. 

It  is  possible  that  some  rare  instances  of  hardship  and  injustice  to 
individuals  have  occurred  in  consequence  of  this  act,  for  they  may 
occur  under  every  such  law.  If  they  can  be  avoided  by  any  amend- 
ment, without  sacrificing  the  public  safety,  the  act  should  be  so 
amended.  At  all  events,  they  are  to  be  deplored  among  the  manifold 
misfortunes  incident  to  so  destructive  a  war. 

But  if  the  law  is  constitutional,  was  necessary,  and  has  been  salu- 
tary, a  brave  and  intelligent  people  will  not  be  alarmed  by  the  clamors 
of  the  disaffected  or  by  rhetorical  exaggeration,  as  if  the  act  endan- 
gered public  liberty  by  enabling  the  President  to  establish  a  despot- 
2 


ism  over  his  country  ;  or,  as  if  it  constituted  him  a  dictator;  or,  as 
if  it  had  left  us  only  a  choice  between  masters,  Northern  or  South- 
ern. The  character  of  the  President  as  a  patriot  needs  no  vindication 
before  his  countrymen.  They  do  not  require  to  be  reminded  of  their 
remaining  defences  against  his  possible  ambition.  They  well  know 
that  the  President* and  this  entire  Government,  so  far  from  being  in  a 
situation  to  attempt  a  despotism,  cannot  exist  an  hour  amidst  present 
dangers  without  the  consent  and  the  earnest,  armed  support  of  the 
States  and  the  people.  They  are  sure  that  our  patriotic  army  will 
never  become  the  tool  of  any  usurper.  Before  this  act  will  expire,, 
less  than  seventy  days  remain  for  the  establishment  of  despotism. 
Within  that  brief  term,  indeed,  the  fate  of  liberty  among  us  may  be 
decided — not  in*a  contest  between  the  President  and  the  people,  but 
in  bloody  battles  between  our  gallant  soldiers  and  the  troops  of  the 
invader.  If  the  invasion  shall  result  in  our  subjugation,  liberty  will 
fall  to  rise  no  more.  If  the  act  to  suspend  the  writ  of  habeas  corpus, 
in  combination  with  other  measures,  has  contributed  to  our  ability  to 
repel  that  invasion,  it  is  one  of  the  pillars  of  public  liberty. 

The  prodigious  magnitude  of  the  war  has  compelled  all  the  re- 
sources of  the  Confederate  States  to  be  employed  with  concentrated 
energy  in  the  defence  of  the  country.  Therefore  the  Confederate 
and  State  Governments  have  been  obliged  to  exert  the  most  eminent 
powers  confided  to.  them  by  their  constitutions,  as  well  as  to  embody 
an  immense  military  force.  This  exercise  of  authority,  like  the  army 
itself,  is  a  necessary  incident  of  the  war  ;  and,  like  the  army,  it  is 
temporary.  With  the  first  dawn  of  peace  this  great  fabric  of  power 
will  dissolve.  The  Constitution,  preserved  and  respected  through  a 
long  and  violent  struggle,  will  remain  entire.  Liberty  will  be 
enjoyed  and  regulated  by  a  people  who,  in  vindicating  their  inde- 
pendence with  their  own  arms,  can  sustain  their  Government  in  the 
vigorous  measures  necessary  for  the  public  defence  in  war,  without 
perverting  principles  appropriate  to  the  milder  reign  of  peace  or 
trampling  upon  any  guaranty  of  constitutional  freedom. 

In  view  of  the  considerations  already  mentioned,  of  the  present 
condition  of  the  country  and  of  contingencies  which  may  happen  at 
any  time  during  the  invasion,  the  committee  are  of  opinion  that  the 
act  to  suspend  the  pfivilege  of  the  writ  of  habeas  corpus  in  certain 
cases  ought  not  to  bo  repealed,  but  ought  to  be  continued  in  force,  as 
recommended  by  the  President. 

May  25,   1864.      ^ 


Hollinger  Corp. 
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